Dunkling v. Lawrence Brunoli, Inc.

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MICHAEL J. DUNKLING v. LAWRENCE
BRUNOLI, INC., ET AL.
(AC 41634)
DiPentima, C. J., and Lavine and Beach, Js.
Syllabus
The defendants B Co. and its insurer appealed to this court from the decision
of the Compensation Review Board affirming the decision of the Work-
ers’ Compensation Commissioner, which determined that B Co., a gen-
eral contractor, was the principal employer of the plaintiff D, when he
suffered a compensable injury while working for an uninsured subcon-
tractor, M Co. B Co. had contracted with the state on a construction
project, and B Co. then subcontracted work to M Co. and C Co. D was
an employee of C Co. and worked on the construction project installing
siding and gutters until he was laid off in November, 2014. B Co. war-
ranted all the work performed against failures of workmanship and
materials for one year after it left the worksite in September, 2014. In
November, 2014, the state contacted B Co. about repairing a leaking
gutter. Thereafter, B Co. contacted M Co. and indicated that it was
refusing final payment until the repairs were made. Subsequently, the
president of M Co., R, hired D directly to repair the leaking gutter. On
December 4, 2014, D and R traveled to the worksite to make the repairs,
during which D fell from a ladder and sustained injuries. After a formal
hearing, the commissioner found, inter alia, that D was an employee of
M Co. and sustained a compensable injury, and ordered M Co. to accept
compensability for D’s injuries. Thereafter, the commissioner made a
subsequent finding that B Co. was a principal employer pursuant to
statute (§ 31-291) and, thus, also was liable for compensation benefits
due to D, on the basis that B Co. initially subcontracted with M. Co.
and that D’s injuries were sustained as the result of B Co.’s direct
communication and directive to M Co. to repair the gutters. On appeal,
the board, inter alia, affirmed the commissioner’s decision, finding that
more than one entity may be deemed a claimant’s principal employer.
On the defendants’ appeal to this court, held:
1. The defendants could not prevail on their claim that the board committed
error in affirming the commissioner’s finding that B Co. was a principal
employer pursuant to § 31-291, because B Co. was not in control of the
worksite when D was injured: although B Co. was not present to oversee
the repair, B Co. was in control of the worksite, as the state directed
B Co. to repair the gutter and, thereafter, B Co. directed M. Co. to send
a representative to the worksite, B Co. was obligated, pursuant to the
contract, to complete the worksite project to the state’s satisfaction,
and B Co. was aware of the risks and dangers worksites presented but
did not elect to supervise the gutter repair and did not repair the gutters
itself; furthermore, B Co. could not prevail on its claim that the board’s
decision was unreasonable because a general contractor has no legal
right to require a subcontractor to maintain workers’ compensation
insurance indefinitely; workers’ compensation law provides benefits
for workers who sustain injuries arising out of and in the course of
employment, and the facts of the present case did not concern a future
claim, as D was injured while he made repairs pursuant to B Co.’s
direction to M Co., B Co. was in control of who made the repairs, and
B Co. had the ability to supervise the repair or make the repair itself,
if M Co.’s workers’ compensation coverage was in doubt.
2. The board did not err in affirming the commissioner’s ruling denying the
defendants’ motion to correct regarding communication between B Co.
and the state concerning a warranty, as this claim was not relevant to
employees or workers’ compensation benefits in the present case;
instead, the issue of warranty was relevant to B Co.’s relationship with
the state, and any error the commissioner made in finding that B Co.
warranted the construction at the worksite was harmless, as B Co.
controlled the worksite by directing M Co. to send a representative to
the worksite to repair the leaking gutter.
Argued November 21, 2019—officially released February 4, 2020
Procedural History
Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Fifth District determining,
inter alia, that the named defendant was the principal
employer of the plaintiff, brought to the Compensation
Review Board, which affirmed the commissioner’s deci-
sion and the named defendant et al. appealed to this
court. Affirmed.
Christopher J. Powderly, for the appellants (named
defendant et al.).
Donna H. Summers, assistant attorney general, for
the appellee (defendant Second Injury Fund).
Opinion
LAVINE, J. The defendants Lawrence Brunoli, Inc.
(Brunoli) and its insurer, Liberty Mutual Insurance
Company, appeal from the decision of the Compensa-
tion Review Board (board) affirming in part the supple-
mental findings and award of the Workers’ Compensa-
tion Commissioner for the Fifth District
(commissioner).1 The defendants’ central claim on
appeal is that the board erred as a matter of law when
it affirmed the commissioner’s determination that, on
the date that the plaintiff, Michael J. Dunkling, sustained
a compensable injury, Brunoli was a principal employer
pursuant to General Statutes § 31-291.2 We affirm the
decision of the board.
The record reveals the following procedural history
and relevant facts. On December 4, 2014, Dunkling was
repairing gutters at Brunoli’s request when he fell from
a ladder and suffered injuries. On December 23, 2014,
he filed a form 30C,3 seeking compensation benefits
against Brunoli, which in turn filed a form 43,4 denying
that Dunkling’s injuries arose out of and in the course
of employment. Brunoli’s subcontractors, Connecticut
Metal Structures, LLC (Connecticut Metal), and Mid-
State Metal Building Company, LLC (Mid-State),5 were
made parties to the action as well as the Second Injury
Fund (fund).6 Following a number of informal and pre-
formal hearings, the case was tried before the commis-
sioner on September 10, 2015, October 28, 2015, and
January 5, 2016. The parties jointly stipulated that Bru-
noli had workers’ compensation insurance on Decem-
ber 4, 2014, but neither Mid-State nor Connecticut Metal
had such insurance on that date. Following the formal
hearing, the commissioner issued his finding and award
on June 20, 2016. The commissioner framed the issue
as whether Dunkling was employed by Brunoli, Con-
necticut Metal, or Mid-State at the time of his injury on
December 4, 2014.
In his original finding and award, the commissioner
found that on July 19, 2012, the Department of Transpor-
tation (state) entered into a contract with Brunoli to
act as the general contractor for a construction project
in Colchester (worksite). The contract permitted Bru-
noli to subcontract work with Mid-State and Connecti-
cut Metal. Brunoli warranted all work performed under
the contract for a period of one year from September
16, 2014, when it left the worksite, against failures of
workmanship and materials.
Connecticut Metal employed Dunkling as an hourly
employee in 2013. Dunkling began installing siding and
gutters at the worksite in January, 2014, and was paid at
or above the prevailing wage. He continued to perform
services at the worksite until June, 2014, and was
employed by Connecticut Metal until November, 2014,
when he was laid off.
In November, 2014, the state contacted Brunoli about
a leaking gutter. On December 3, 2014, Bertrand Rom-
pre, president of Mid-State, contacted Dunkling and
requested that he return to the worksite with him to
repair a leaking gutter. Rompre indicated to Dunkling
that Brunoli refused final payment to Mid-State until
the leak was repaired. Rompre agreed to pay Dunkling
at his usual wage for repairing the gutter on December
4, 2014.
On December 4, 2014, Dunkling met Rompre at Mid-
State’s offices, and Rompre took him to the worksite
and directed him to the location of the leak. Rompre
provided Dunkling with materials, including a ladder,
to repair the leak. Dunkling had been working for
approximately four hours7 when the ladder Rompre
provided retracted, causing him to fall and sustain mul-
tiple injuries. He has not worked since December 4,
2014. His medical bills totaled $16,675.26.
On the basis of the evidence, the commissioner found
that Dunkling was a credible witness, who had sus-
tained compensable injuries in the course and scope
of his employment with Mid-State on December 4, 2014.
The employer-employee relationship was the result of
conduct between Dunkling and Rompre. The commis-
sioner ordered Mid-State to accept compensability for
Dunkling’s reasonable and necessary treatment of the
injuries he sustained, along with all related present and
future medical treatment, including, but not limited to,
permanent partial impairment to be determined at a
future hearing.
On June 23, 2016, the fund filed a motion for articula-
tion, stating that, at the September 10, 2015 hearing,
the issue of principal employer under § 31-291 was iden-
tified. Brunoli and the fund had addressed the issue in
their posttrial briefs, but the commissioner failed to
address it in his finding and award. The fund asked the
commissioner to reconsider his decision and to issue
findings relevant to the issue of principal employer.
The commissioner held an additional formal hearing
on July 22, 2016, and issued a supplemental finding
and award on October 28, 2016, making the following
additional findings. Brunoli had contracted with the
state and subcontractors to build a structure at the
worksite as part of its trade or business. Dunkling was
injured within the specified area of the worksite.
Although it is undisputed that Brunoli initially subcon-
tracted with Mid-State, the injuries that Dunkling had
sustained on December 4, 2014, came about in response
to Brunoli’s communication and directive to Mid-State
that it summon a representative to the worksite for
gutter repair, even though no Brunoli representative
remained on the worksite.8 The commissioner reached
the additional conclusion that Brunoli was a principal
employer pursuant to § 31-291 on December 4, 2014.
The defendants filed a petition for review of the com-
missioner’s supplemental finding and award, stating
that the commissioner erroneously found that Brunoli
‘‘satisfied the requirements necessary to be deemed a
principal employer, contrary to the underlying facts and
applicable law.’’ On December 9, 2016, the fund filed a
motion to correct that contained sixteen items.9 On
December 11, 2016, the defendants filed a motion to
correct that contained nineteen items.10 The commis-
sioner denied each of the motions to correct in its
entirety.
The defendants’ petition for review was heard by
the board on September 29, 2017. The board issued its
opinion on April 25, 2018. The board noted that, on
appeal, Brunoli took the position that the worksite
where Dunkling was injured was substantially complete
on December 4, 2014; see footnote 7 of this opinion;
and that, because Brunoli did not exercise control over
the worksite, § 31-291 does not apply to the facts of
the case. The fund, however, contended that the facts
before the commissioner supported his finding that Bru-
noli had sufficient control over the worksite to apply
§ 31-291. The board agreed with the fund and affirmed
the commissioner’s supplemental finding that Brunoli
is liable to Dunkling as a principal employer.
The fund also argued to the board that the case should
be remanded for resolution of various issues related to
the relief to which Dunkling is entitled, but were not
addressed in the commissioner’s supplemental finding.
The fund noted that more than one entity may be
deemed a claimant’s principal employer and that each
entity in the chain between the general contractor and
the claimant’s immediate employer may be found liable
for the claimant’s injuries. See Samaoya v. Gallagher,
102 Conn. App. 670, 678, 926 A.2d 1052 (2007), citing
to Palumbo v. Fuller Co., 99 Conn. 353, 365, 122 A. 63
(1923). The fund had raised the multiple employer
issue in its motion to correct, which the commissioner
denied. The board determined that it was error for the
commissioner to have denied that portion of the fund’s
motion to correct. Moreover, the board stated that the
commissioner’s supplemental finding did not establish
a wage rate for Dunkling or the duration of his disability
so that the amount of his compensation could be calcu-
lated. The board, therefore, remanded the case to the
commissioner for additional proceedings.
The defendants thereafter appealed to this court,
essentially claiming that the board erred as a matter of
law in affirming the commissioner’s finding that Brunoli
was a principal employer within the meaning of § 31-
291 on December 4, 2014.11
The standard of review in workers’ compensation
matters is well established. The board’s ‘‘hearing of an
appeal from the commissioner is not a de novo hearing
of the facts. . . . [I]t is oblig[ated] to hear the appeal on
the record and not retry the facts.’’ (Internal quotation
marks omitted.) Sellers v. Sellers Garage, Inc., 92 Conn.
App. 650, 651, 887 A.2d 382 (2005). ‘‘[T]he power and
duty of determining the facts [rest] on the commis-
sioner, the trier of facts. . . . It matters not that the
basic facts from which the [commissioner] draws this
inference are undisputed rather than controverted. . . .
It is likewise immaterial that the facts permit the draw-
ing of diverse inferences. The [commissioner] alone is
charged with the duty of initially selecting the inference
which seems most reasonable and his choice, if other-
wise sustainable, may not be disturbed by a
reviewing court.
‘‘[The] scope of review of actions of the [board] is
. . . limited. . . . The decision of the [board] must be
correct in law, and it must not include facts found
without evidence or fail to include material facts which
are admitted or undisputed.’’ (Citation omitted; internal
quotation marks omitted.) Hebert v. RWA, Inc., 48 Conn.
App. 449, 452–53, 709 A.2d 1149, cert. denied, 246 Conn.
901, 717 A.2d 239 (1998).
I
The defendants claim that the board erred by
affirming the commissioner’s finding that Brunoli was a
principal employer under § 31-291, arguing that Brunoli
was not in control of the premises when Dunkling was
injured. The essence of Brunoli’s claim is that because
it substantially had completed construction at the work-
site and had withdrawn in September, 2014, it was no
longer in control of the worksite on December 4, 2014.
We disagree.
Resolution of this claim is a matter of statutory con-
struction. ‘‘The principles that govern our standard of
review in workers’ compensation appeals are well
established. The conclusions drawn by [the commis-
sioner] from the facts found must stand unless they
result from an incorrect application of the law to the
subordinate facts or from an inference illegally or unrea-
sonably drawn from them. . . . It is well established
that [a]lthough not dispositive, we accord great weight
to the construction given to the workers’ compensation
statutes by the commissioner and [the] board. . . . A
state agency is not entitled, however, to special defer-
ence when its determination of a question of law has
not previously been subject to judicial scrutiny . . . or
when its construction of a statute has not been time-
tested.’’ (Citation omitted; internal quotation marks
omitted.) Gill v. Brescome Barton, Inc., 317 Conn. 33,
42, 114 A.3d 1210 (2015).
‘‘[I]t is well established that, in resolving issues of
statutory construction under the [Workers’ Compensa-
tion Act (act), General Statutes § 31-275 et seq.] act . . .
the act indisputably is a remedial statute that should
be construed generously to accomplish its purpose.
. . . The humanitarian and remedial purposes of the
act counsel against an overly narrow construction that
unduly limits eligibility for workers’ compensation.’’
(Internal quotation marks omitted.) Wiblyi v. McDon-
ald’s Corp., 168 Conn. App. 77, 85, 144 A.3d 1075 (2016).
‘‘The purpose of § 31-291 is to protect employees of
minor contractors against the possible irresponsibility
of their immediate employers, by making the principal
employer who has general control of the business in
hand liable as if he had directly employed all who work
upon any part of the business which he has undertaken
to carry on. . . . Any reasonable reading of § 31-291
makes it clear that the principal employer is ultimately
liable for payment of a [workers’] compensation claim
for an injury received while at work.’’ (Citation omitted;
internal quotation marks omitted.) Hebert v. RWA, Inc.,
supra, 48 Conn. App. 455–56.
Our Supreme Court has stated that, ‘‘[i]n construing
workers’ compensation law, we must resolve statutory
ambiguities or lacunae in a manner that will further the
remedial purpose of the act. . . . [T]he purposes of
the act itself are best served by allowing the remedial
legislation a reasonable sphere of operation considering
those purposes.’’ (Citation omitted; internal quotation
marks omitted.) Hart v. Federal Express Corp., 321
Conn. 1, 19, 135 A.3d 38 (2016); see also Regs., Conn.
State Agencies § 31-301-8.
General Statutes § 31-291 provides in relevant part:
‘‘When any principal employer procures any work to
be done wholly or in part for him by a contractor,
or through him by a subcontractor, and the work so
procured to be done is part or process in the trade or
business of such principal employer, and is performed
in, on or about premises under his control, such princi-
pal employer shall be liable to pay all compensation
under this chapter to the same extent as if the work
were done without the intervention of such contractor
or subcontractor. . . .’’ (Emphasis added.) Our appel-
late courts previously have construed § 31-291 and, in
particular, the element of control of the premises.
There are three primary elements of § 31-291. See
Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn.
App. 60, 72, 504 A.2d 1376, cert. denied, 199 Conn. 808,
508 A.2d 769 (1986). ‘‘One, the relation of the principal
employer and contractor must exist in work wholly or
in part for the former. Two, the work must be in, on
or about the premises controlled by the principal
employer; and three, the work must be a part or process
in the trade or business of the principal employer.’’
(Internal quotation marks omitted.) Mancini v. Bureau
of Public Works, 167 Conn. 189, 193, 355 A.2d 32 (1974).
The parties agree that the first and third elements of
the statute are met in the present case. They disagree
as to whether Brunoli was in control of the worksite.
‘‘The term control in [the context of § 31-291] has a
specific meaning. It is merely descriptive of the work
area and is used instead of such words as owned by
him or in his possession in order to describe the area
in a more inclusive fashion. The emphasis is upon limita-
tion of the area within which the accident must happen
rather than upon actual control of the implements
which caused the accident.’’ (Internal quotation marks
omitted.) Alpha Crane Service, Inc. v. Capitol Crane
Co., supra, 6 Conn. App. 72–73.
The board affirmed the commissioner’s finding that
Brunoli had a contract with the state to construct a
building at the worksite. It also found that Brunoli ini-
tially subcontracted with Mid-State to perform siding
and gutter work at the worksite. After the state
informed Brunoli that there was a problem due to a
leaky gutter over a pass door, Brunoli contacted Rom-
pre at Mid-State, one of its original subcontractors, and
informed him that it was withholding payment due to
the leak. Brunoli directed Mid-State to summon a repre-
sentative to the worksite to repair the leak.12 Rompre
contacted Dunkling and asked him to fix the leaking
gutter. Dunkling met Rompre at Mid-State and went
to the worksite with him to repair the gutter. A state
employee at the worksite pointed out additional leaks
to Rompre. It was while Dunkling was repairing one of
the other leaks; see footnote 6 of this opinion; that he
fell from the ladder. The commissioner concluded that
Brunoli was a principal employer. Brunoli took an
appeal to the board claiming that it was not a principal
employer because it was not in control of the worksite.
The board affirmed the commissioner’s finding that Bru-
noli was a principal employer on the basis of this court’s
decision in Hebert v. RWA, Inc., supra, 48 Conn. App.
449.
In Hebert, the claimant was injured while he was
employed by a subcontractor to install a rubber roof
on a restaurant on behalf of the general contractor. Id.,
451. The claimant filed a workers’ compensation claim
against both the subcontractor and the general contrac-
tor, who both failed to carry workers’ compensation
insurance. Id. The commissioner found that the claim-
ant sustained a compensable injury and that the general
contractor was a principal employer. Id., 452. The gen-
eral contractor appealed to the board, claiming that the
commissioner improperly had found that he was in
control of the premises where the claimant was injured.
Id., 454. He alleged that ‘‘he did not control the premises
because he did not own them, have a trailer or office
on them or have the ability to control the [claimant’s]
activities. The evidence shows, however, that [the gen-
eral contractor] visited the job site daily, inspected the
ongoing work and asked the [claimant] to address cer-
tain problem areas on the roof before proceeding. [The
general contractor] alone dealt with the owners of the
premises and he was ultimately responsible to them for
the satisfactory completion of the work.’’ Id. He also
claimed that the nature of his business was residential
remodeling, not roof installation. Id.
This court affirmed the board’s decision and adopted
its reasoning that the general contractor ‘‘obtained the
contract for installation of the roof by dealing directly
with the restaurant and that he then hired [the subcon-
tractor] to install the roof. [The general contractor]
negotiated the contract price with the restaurant and
with [the subcontractor], reserving a fee for himself.
The case law is settled that as long as the subcontrac-
tor’s operations entered directly into the successful per-
formance of the commercial function of the principal
employer . . . those operations are a part of the pro-
cess of the trade or business of the principal employer.’’
(Citation omitted; internal quotation marks omitted.)
Id., 454–55. Hebert is on point with the facts before us.
In the present case, Brunoli negotiated a contract
with the state to construct a building at the worksite.
It also subcontracted with Mid-State and Connecticut
Metal to perform services at the worksite. Brunoli was
obligated to complete the worksite project to the satis-
faction of the state. Brunoli informed Rompre that it
was withholding payment because of a leak and
directed Rompre to send a representative to the work-
site to fix it. The fact that the state not only permitted,
but also directed Brunoli to go to the state owned work-
site to repair the leak is evidence that Brunoli was in
control of the worksite where the leak occurred. Bru-
noli argues that, unlike the general contractor in Hebert,
it did not go to the worksite to oversee the gutter repair.
That is a distinction without a difference in the present
case. Brunoli was required to fix the leak and had con-
trol over who repaired the gutter. It directed Mid-State
to send a representative to the worksite to fix the gutter.
Brunoli, as a general contractor, surely is aware of the
risks and the dangers present at a worksite and it could
have gone to supervise the gutter repair if it had con-
cerns and had elected to do so. Instead, it delegated
the responsibility to its subcontractor, Mid-State.
Brunoli claims that the board’s decision is unreason-
able and bad policy for several reasons because a gen-
eral contractor has no legal right to require a subcon-
tractor to maintain workers’ compensation insurance
indefinitely. Our decision, however, does not stand for
the proposition that a general contractor must require
a subcontractor to maintain workers’ compensation
insurance indefinitely. Our workers’ compensation law
provides benefits for workers who sustain injuries aris-
ing out of and in the course of employment. See, e.g.,
Spatafore v. Yale University, 239 Conn. 408, 417–18,
684 A.2d 1155 (1996). The issue in the present appeal is
limited to its facts. After Brunoli and its subcontractors
substantially had completed construction at the work-
site, Brunoli directed one of its subcontractors to return
to the worksite to repair a leaking gutter. Brunoli con-
trolled whom it directed to repair the leak. Brunoli
asked Mid-State to repair the gutters. Unfortunately,
Dunkling was injured while he was repairing the gutter
at Brunoli’s direction. This case is about what happened
on December 4, 2014, not in the future. If Brunoli had
questions about Mid-State’s workers’ compensation
coverage, it could have inquired. It also could have gone
to the worksite to supervise the repair or it could have
repaired the gutters itself if Mid-State’s compensation
coverage was in doubt.
For the foregoing reasons, we conclude that the
board properly affirmed the commissioner’s finding that
Brunoli is a principal employer.
II
The defendants also claim that the board improperly
affirmed the commissioner’s ruling denying their
motion to correct with respect to communication
between Brunoli and the state concerning a warranty.
The issue of a warranty in the present case is a red
herring, as it is relevant to Brunoli’s relationship with
the state, and is not relevant to its employees and work-
ers’ compensation benefits. To the extent that the com-
missioner erred in finding that Brunoli warranted the
construction at the worksite, it is harmless error, if any.
As we stated in part I of this opinion, Brunoli controlled
the worksite by directing Mid-State to send a represen-
tative to the worksite to repair the leaking gutter. Bru-
noli may have been obligated to the state to fix the leak,
but workers’ compensation coverage in the present case
is a separate issue.
The decision of the Compensation Review Board is
affirmed.
In this opinion the other judges concurred.
1
All references to the defendants are to Brunoli and its insurer. Other
parties named as defendants in the action are addressed by name subse-
quently in this opinion.
2
The defendants claim that (1) the board’s decision that Brunoli is a
principal employer violates the rules of statutory construction, (2) the board
committed legal error by affirming the commissioner’s finding that Brunoli
was a principal employer, (3) the board’s reliance on Hebert v. RWA, Inc.,
48 Conn. App. 449, 709 A.2d 1149, cert. denied, 246 Conn. 901, 717 A.2d 239
(1998), was misplaced, (4) the board and the trial commissioner erred as a
matter of law by incorporating warranty considerations in reaching their
conclusions as to the applicability of § 31-291, (5) alternatively, if warranty
considerations are relevant to the § 31-291 issues, the board erred as a
matter of law by affirming the commissioner’s denial of the defendants’
motion to correct, which itself was legal error, (6) the board and the commis-
sioner erred as a matter of law by including communications between Bru-
noli and the Department of Transportation as to leaking gutters in reaching
their conclusions with respect to § 31-291, (7) alternatively, if communica-
tions among Brunoli, the state, and Mid-State Metal Buildings Company,
LLC are relevant to the § 31-291 issues, the board erred as a matter of law
by affirming the commissioner’s denial of the motion to correct filed by
Brunoli and its insurer, which itself was legal error.
3
‘‘A form 30C is the document prescribed by the . . . commission to be
used when filing a notice of claim pursuant to the [Workers’ Compensation
Act].’’ (Internal quotation marks omitted.) Lamar v. Boehringer Ingelheim
Corp., 138 Conn. App. 826, 828 n.3, 54 A.3d 1040, cert. denied, 307 Conn.
943, 56 A.3d 951 (2012).
4
‘‘A form 43 is a disclaimer that notifies a claimant who seeks workers’
compensation benefits that the employer intends to contest liability to pay
compensation.’’ (Internal quotation marks omitted.) Lamar v. Boehringer
Ingelheim Corp., 138 Conn. App. 826, 828 n.2, 54 A.3d 1040, cert. denied,
307 Conn. 943, 56 A.3d 951 (2012).
5
Connecticut Metal and Mid-State are not parties to the present appeal.
6
The fund assumed responsibility for Dunkling’s injuries pursuant to Gen-
eral Statutes § 31-355 (b), which provides in relevant part that ‘‘[w]hen an
award of compensation has been made under the provisions of this chapter
against an employer who failed, neglected, refused or is unable to pay any
type of benefit coming due as a consequence of such award or any adjustment
in compensation required by this chapter, and whose insurer failed,
neglected, refused or is unable to pay the compensation, such compensation
shall be paid from the Second Injury Fund. . . .’’
7
The record discloses that while Rompre and Dunkling were present at
the worksite, a state employee pointed out six or seven additional leaks,
which Rompre directed Dunkling to repair so they would not have to return.
On appeal, Brunoli argues that it asked Mid-State to repair just one leak
and, therefore, it should not be responsible for the injuries Dunkling sus-
tained when he was fixing the other leaks, if at all. The defendants’ argument
regarding the number of leaks Dunkling repaired is meritless. Brunoli was
withholding payment from Mid-State due to gutter leaks, and Mid-State
wanted to be paid. Rompre decided to have Dunkling fix all of the leaks
while they were present.
8
The record demonstrates that construction at the worksite was substan-
tially complete on September 16, 2014, and that Brunoli withdrew from the
worksite on September 24, 2014. The state took occupancy of the building
beginning on September 29, 2014.
9
The board summarized the corrections sought by the fund, to wit: ‘‘correc-
tions clarifying the nature of the business relationship between Brunoli and
its subcontractors, as well as corrections to the ‘Order’ language in the
Supplemental Finding regarding the obligations owed to [Dunkling] by both
Mid-State and Brunoli.’’
10
The board summarized the corrections sought by the defendants, to
wit: Brunoli ‘‘sought to substitute findings that [it] was no longer in control
of the premises on the date of [Dunkling’s] injury and the party controlling
the premises was the [state].’’
11
Although the board remanded the case to the commissioner for addi-
tional findings, this court has jurisdiction to hear the appeal pursuant to
General Statutes § 31-301b, which provides: ‘‘[A]ny party aggrieved by the
decision of the Compensation Review Board upon any question or questions
of law arising in the proceedings may appeal the decision of the Compensa-
tion Review Board to the Appellate Court, whether or not the decision is
a final decision within the meaning of section 4-183 or a final judgment
within the meaning of section 52-263.’’
12
Dunkling initially was employed by Connecticut Metal to perform siding
and gutter work at the worksite. The record discloses that on November
14, 2014, Andrew Milovitsch, a state employee, contacted Peter Gavin, Bru-
noli’s vice president, to inform him of a gutter leak over a pass door. Gavin
communicated with Rompre and asked him to have the leak fixed. Rompre
was unable to reach Robert Pelletier, a principal of Connecticut Metal, and
therefore, contacted Dunkling directly.